Independence Institute amicus brief in Newsom v. Albermarle

IN THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT

______________

RECORD NO. CA 03-1125

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ALAN NEWSOM, a minor by and
through FRED NEWSOM, his Parent and Next Friend, APPELLANT

VS.

ALBEMARLE COUNTY SCHOOL BOARD, by and through its School Board Members: CHARLES
M. WARD, PAM MOYNIHAN, GORDON WALKER, KEN C. BOYD, STEPHEN H. KOLESZAR, DIANTHA
H. MCKEEL, GARY GRANT, In their Official Capacities; KEVIN CASTNER, In his
Official Capacity, as Division Superintendent, of the Albemarle County Public School System;

RUSSELL L. JARRETT, In his Official Capacity, as Principal, of Jack
Jouett Middle School; BETTY PITT, both in her Individual Capacity and in her
Official Capacity as
Vice Principal, of Jack Jouett Middle School, Jointly and Severally,

APPELLEE

________________

AMICUS CURIAE BRIEF OF THE INDEPENDENCE INSTITUTE

ON BEHALF OF THE APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF VIRGINIA, CHARLOTTESVILLE DIVISION

SUMMARY OF ARGUMENT

Appellees' policy is unconstitutional because it is fails the
Fourteenth Amendment's rational basis test. The policy is irrational because
censorship of speech promoting safe and lawful youth participation in the
shooting sports is inconsistent with Appellees' purported objective of
preventing illegal gun misuse. The policy also fails the rational basis test
because the policy's purpose is based on an illegitimate objective of
suppressing speech about the exercise of constitutional rights.

ARGUMENT

I. To be Constitutional, the District's Policy Must be
Rationally Related to a Legitimate Government Purpose

Appellant has brought a claim that Appellees are
violating the Fourteenth Amendment. Assuming arguendo that the Appellees'
sincere objective in censoring Appellant's speech is the prevention of illegal
violence involving weapons at school, the district's censorship policy is
irrational. The message conveyed by Appellant's speech was the promotion of
youth participation in shooting sports, activities, such as those conducted by
the National Rifle Association. These activities are wholesome and constructive,
and promote just the opposite of criminal violence.

Hypothesize that the First Amendment were completely
inapplicable in school settings, and that a school district adopted a censorship
policy forbidding expression "promoting racial violence." Further hypothesize
that the school district threatened to suspend a student because he wore a
t-shirt with the words "Dr. Martin Luther King, Jr." and drawings of Dr. King
speaking in three different poses.

Even without the First Amendment, the school
district's censorship of the Martin Luther King t-shirt would be
unconstitutional as a violation of the Fourteenth Amendment's equal protection
clause, because the policy would be irrational.

Of particular significance is Cleburne v.
Cleburne Living Center, a case which illustrates some of the analytic
techniques a court may use in evaluating whether a government action is
"rationally related to a legitimate governmental purpose." Cleburne, at 446. The city of Cleburne had denied a special use zoning
permit to a home for the mentally retarded. The Supreme Court overturned the
holding of the lower federal court, and held that the mentally retarded were
not a suspect or quasi-suspect class. Accordingly, the rational basis test
was appropriate. In applying the rational basis test, the Court carefully
examined each of the city's stated justifications for its decision. One
basis—the negative attitudes and unsubstantiated fears of local residents—was
found to be an illegitimate basis for government action. Id. at
448-49. The Court found other purported rationales—such as the building's
location in a floodplain, potential, legal irresponsibility of the tenants, and
crowding—to be inconsistent with other city actions that had allowed other group
care homes to be built in floodplains, and had freely allowed construction of
other group homes, such as fraternities. Id. at 449-50.

II. APPELLEES' CENSORSHIP POLICY IS IRRATIONAL

In the hypothetical case of censorship of the Martin
Luther King t-shirt, the censorship for the purpose of suppressing speech
promoting racial hatred and violence would be irrational. Dr. King advocated
(and, by extension, a t-shirt of Dr. King also advocates) racial harmony and
non-violence. Accordingly, to censor an all-American icon such as Dr. King would
be unconstitutionally irrational.

Exactly the same may be said about the district's
censorship of a message promoting the National Rifle Association and youth
sports programs. Youth involvement in the shooting sports fosters wholesome
character development that helps overcome the temptations of juvenile
delinquency. Appellees would be no less irrational if they claimed that they
wanted to reduce teenage pregnancy—and then carried out the policy by censoring
t-shirts promoting religious youth group chastity programs.

One of the first and greatest advocates of public
education in Virginia was Thomas Jefferson. In a letter, Jefferson advised his
nephew:

A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives a
moderate exercise to the Body, it gives boldness, enterprise and independence to
the mind. Games played with the ball, and others of that nature, are too violent
for the body and stamp no character on the mind. Let your gun therefore be the
constant companion of your walks.

Appellees are apparently under the misimpression
that there is some kind of causal connection between lawful participation in the
shooting sports and criminal violence. In fact, scholarship suggests just the
opposite. Erich Fromm, one of the greatest humanistic psychologists of the
twentieth century, has explained that ethical hunting
is not sadistic; rather, ethical hunting promotes for nature and for life. Erich
Fromm, The Anatomy Of Human Destructiveness 155-63 (1992).

Fromm's views here reflect the
scientific mainstream. Psychologist James Swan notes that that no major
psychologist of the 20th century claims that ethical hunting encourages violence
against human; rather, the consensus is that hunting fosters respect for life
and ecological conservation. James Swan, The Sacred Art Of Hunting16
(2000).
In one of the classic books of sociobiology, Melvin Konner—a
psychiatrist and anthropologist—explains that there is no correlation between
interspecies aggression (such as hunting) and intraspecies aggression (such as
criminal violence). Melvin Konner, The Tangled Wing 203 (1982).

University of Nebraska-Omaha
Professor Chris Eskridge examined the relationship between hunting license sales
and levels of violence. Professor Eskridge found that the relationship was
inverse: the more hunting licenses sold, the lower the rates of violent crime.
Christopher Eskridge, "Zero-Inverse Correlation Between Crimes of Violence and Hunting
Licenses In The United States," Sociology & Social Res.55 (1986).

Ronald Stephens, director of the National School Safety Center
(which was created in l984 to study school violence), states: "The notion that
anyone who hunts is violent is nonsense. . . . There is no reason in my view to
condemn hunting."
Lance Morrow, "Should
Kids Hunt?"
Time, Nov. 30,
1998. Terri Royster, a FBI Academy instructor on juvenile violence, agrees that
no research that links hunting and violence against humans. Id.

NRA and other youth shooting sports
programs teach the skills which are the foundation of successful participation
in sports, at a recreational or competitive level. In particular, these include
quiet concentration, focus, and physical coordination. Compared to many other
sports, raw strength and reflexes are relatively less important. The shooting
sports are virtually the only intercollegiate sports in which males and females
participate on the same team.

The
President's Council on Physical Fitness has developed the Presidential
Sports Award Program, which is administered by the Amateur Athletic Union.
The program encourages Americans aged six years and up to earn awards by
completing a certain amount of activity in various sports. A person who
successfully completes the challenges will receive

1) A personalized certificate
of achievement with facsimile signature of the current President of the United
States.
2) Letter of congratulations
from the Executive Director of the President's Council on Physical Fitness and
Sports.
3) A blazer patch
(embroidered emblem) signifying the sport/activity in which the award was
earned.

Among the sports
for which a participant can earn awards are Pistol (fire at least 2,000 rounds; no more than 100
rounds credited daily; various minimum distances for various pistol types);
Rifle (same rules as pistol; various minimum distances); and Skeet-Trap (fire at
800 targets, no more than 50 credited per day). Id. Appellees' policy
would punish students who display the blazer patch they earn for participation
in The President's Sports and Fitness Awards Program. Students could also be
punished for displaying their achievement certificate from the from the
President of the
United States.

Another government program which
encourages character-building youth participation in the shooting sports is the
4-H Clubs, which were created by the United States Department of Agriculture's
Cooperative Extension Service. The clubs' name comes from the objective of
the clubs, which is:

Our programs are valuable for helping young people develop
self-confidence, personal discipline, responsibility, teamwork, self esteem and
sportsmanship. The discipline and self-control required for responsible firearms
use carries over into many other aspects of life….

The 4-H shooting sports program is designed to teach good
self-concept and character, and to promote the highest standards of safety and
ethical behavior.

Appellees'
irrationally overbroad policy would punish students for wearing clothing or
patches from the 4-H's shooting safety programs—even though such programs are
sponsored by a non-profit organization carrying out a program for the United
States government. See "National 4-H Shooting Sports Order Form" (2002)
< http://www.4-hshootingsports.org/index.asp?wpID=buyStuff >.

The goal of Olympism is to place
everywhere sport at the service of the harmonious development of man, with a
view to encouraging the establishment of a peaceful society concerned with the
preservation of human dignity. To this effect, the Olympic Movement engages,
alone or in cooperation with other organizations and within the limits of its
means, in actions to promote peace….
The goal of the Olympic Movement
is to contribute to building a peaceful and better world by educating youth
through sport practised without discrimination of any kind and in the Olympic
spirit, which requires mutual understanding with a spirit of friendship,
solidarity and fair play.

The sport which best fulfills these
peaceful Olympic ideals is shooting. Shooting sports were part of the first
modern Olympics in 1896, and today there are 18 different shooting sports in the
Summer Olympics (including the shooting event in the Modern Pentathlon), and 8
biathlon (shooting plus cross-country skiing) events in the Winter Olympics. In
both the Summer and the Winter Olympics, more nations participate in the
shooting sports events than in any other. After all, not every poor nation can
afford to build a speed skating practice rink, but the equipment for sport
shooting and target range is much more affordable.

Appellees' policy makes it illegal for a
student to wear a jacket patch supporting our nation's Olympic competitors from
the United States Shooting Team, or to carry a notebook with a cover depicting a
Paralympic shooter in a wheelchair. Indeed, many other Olympic depictions are
likewise censored, since so many Olympic sports involve the use of ancient or
modern "weapons", such as archery, boxing, discus, fencing, hammer throw, and
javelin.

The President's Council on Physical
Fitness, the 4-H Clubs, the Boy Scouts, the Olympics, the Paralympics:
these are the organizations whose displays must be driven out of public schools,
according to Appellees' perverse and irrational policy. It is quite plainly
irrational to prohibit student clothing with messages which extol programs like
the Olympics and others which promote peace and good character through sports.

There is an undeniably a significant problem in the
United States involving illegal gun violence. However, responsible shooting
sports programs, including those run by the NRA, promotes just the opposite.
Such programs foster a culture of conscientious safety regarding firearms. It is
irrational for Appellees to attempt to prevent irresponsible behavior involving
firearms by censoring speech which encourages responsible behavior. "The State
may not rely on a classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or irrational." Cleburne,
473 U.S. at 446.

III. APPELLEES' PURPOSE IS ILLEGITIMATE BECAUSE IT IS PREMISED
ON IRRATIONAL HOSTILITY TO THE EXERCISE OF CONSTITUTIONAL RIGHTS

In Cleburne, one reason the Court found the
local government's policy to be irrational was because the policy was based on
prejudice against retarded people (even though retarded people were not a
protected class, the Court emphasized). The government could not rely on "mere
negative attitudes, or fear, unsubstantiated by factors which are properly
cognizable…" Cleburne, 473 U.S. at 448. To base policy on "vague,
undifferentiated fears is again permitting some portion of the community to
validate what would otherwise be an equal protection violation." Id. at 449.

The bigotry and irrational phobia on which Appellees'
censorship is based is precisely what began the instant case. The teacher who
censored Appellant's shirt (depicting lawful participation in the sport of
target shooting) claimed that the shirt reminded her of Columbine (a sadistic
mass murder in a high school), because guns were an element of both the shirt
and the murders. This is akin to a teacher censoring a student's Beethoven
shirt, because the teacher is reminded of the Holocaust, since the Holocaust and
Beethoven both involve Germans.

In the instant case, Appellees' irrational prejudice
is especially unacceptable, as a matter of constitutional law, because the
censorship is directed against a person specifically for having exercised a
constitutional right in an entirely lawful manner.

As this Court has pointed out, in an en banc decision, the Second Amendment protects an individual right: "Neither gathering
in a group nor carrying a firearm are one of the major life activities under the
ADA [Americans with Disabilities Act], though individuals have the
constitutional right to peaceably assemble, see U.S. Const. amend. I; and to
'keep and bear Arms,' U.S. Const. amend. II." Runnebaum v. Nationsbank of
Maryland, N.A., 123 F.3d 156 n. 8 (4th Cir. 1997) (en banc, plurality
opinion). The state of the Virginia also guarantees Appellant's personal state
constitutional right to keep and bear arms, and to hunt. Vir. Const., art. I,
sect. 13; art. XI, sect. 4; see also Stephen P. Halbrook, "Rationing
Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of
Rights of Virginia, West Virginia,
and the United States," 96 W.Va. L. Rev.1 (1993)(history of the individual right to arms in Virginia
and West Virginia).

It has long been established in the United States that the Second
Amendment right includes the right of young people such as Appellant to train
with firearms. The first American case to discuss the Second Amendment in detail
explained that the right encompassed,

The right of the whole people,
old and young, men, women and boys, and not militia only, to keep and bear
arms of every description, and not such merely as are used by the
militia, shall not be infringed, curtailed, or broken in upon,
in the smallest degree.

Nunn v. State,
1 Ga. 243, 251 (1846)(emphasis in original).

One of the major 19th century cases
interpreting the Second Amendment was Andrews v. State, in which the
Tennessee Supreme Court explained that the right to arms:

involves the right to practice
their use, in order to attain to this efficiency. The right and use are
guaranteed to the citizen, to be exercised and enjoyed in time of peace, in
subordination to the general ends of civil society; but, as a right, to be
maintained in all its fullness….

Andrews v. State,
50 Tenn. (3 Heisk.) 165 (1871).

Judge Thomas Cooley was the greatest constitutional
scholar of the latter half of the 19th century. In his treatise
The General Principles of Constitutional Law, he explained that the Second
Amendment right belongs to all people, not merely to those enrolled in the
militia. Moreover:

to bear arms implies something
more than the mere keeping; it implies the learning to handle and use them in a
way that makes those who keep them ready for their efficient use; in other
words, it implies the right to meet for voluntary discipline in arms, observing
in doing so the laws of public order.

Thomas M. Cooley, The General Principles of Constitutional
Law in the United States of America 282 (1998, reprint of 2d ed. 1891).

"To meet for voluntary discipline in arms, observing
in doing so the laws of public order" is precisely what Appellant was doing.
Participating in a shooting sports camp, Appellant was acting as an especially
good citizen, by going out of his way to improve his ability to exercise an
important right and duty of citizenship. To attend a civic group's classes on
how to be an educated voter, to attend a bar association's classes on how to
serve responsibly on a jury, and to attend a NRA class on how to bear arms in a
safe and responsible manner are all admirable efforts to improve one's
contribution as a citizen. For a public school—an institution whose very
purpose is to promote good citizenship—to punish a student for encouraging
people to be better citizens is outrageous and irrational.

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